Program Operations Manual System (POMS)

GN 03305.030 Disclosure of ADAP Records

The U.S. Public Health Service (PHS) has published regulations at 42 CFR Part 2 governing the disclosure of Alcoholism and Drug Abuse Patient (ADAP) records. An ADAP record is any record of identification, diagnosis, prognosis, or treatment of a patient maintained in connection with the performance of an alcohol or drug abuse prevention function, directly or indirectly, funded by the Federal government. A diagnostic code derived from or based on an ADAP record is also an ADAP record subject to the PHS regulation. The PHS defines an ADAP program as any program under which a person or entity holds itself out as a provider of alcohol or drug abuse diagnosis, treatment, or treatment referral services. An ADAP program exists in a general medical care facility if the facility:

Has an identified unit holding itself out as a provider and provides alcohol or drug abuse diagnosis, treatment, or treatment referral; or

Has medical or other staff whose primary function is the provision of alcohol or drug abuse diagnosis, treatment, or referral for treatment and who are identified as such providers.

The existence of an alcohol or drug problem is not an adequate basis for invoking the requirements of the PHS regulations. For example, a diagnosis of alcoholism or drug abuse recorded in the social history of a patient’s medical report is not sufficient to classify the report as an ADAP record. An ADAP record will be classified and bear a label or other marking identifying it as an ADAP record when we receive it from the source. We may disclose medical records that are not classified or labeled as ADAP records in accordance with the Privacy Act, FOIA, and other applicable disclosure laws.

The PHS regulation at 42 CFR 2.31 requires a special consent document to authorize the disclosure of ADAP records. The consent document must contain:

The specific name or general designation of the program or person permitted to make the disclosure;

The name or title of the individual or the name of the organization to which disclosure is to be made;

The name of the patient;

The purpose of the disclosure;

How much and what kind of information is to be disclosed;

The signature of the patient and, when required for a patient who is a minor, the signature of a person authorized to give consent under State law, or legal guardian or other person authorized under State law to act on behalf of the patient, or if the patient has been adjudged incompetent or is deceased, the signature of a person authorized to sign in lieu of the patient (see GN 00502.005A);

The date on which the authorized person signs the consent;

A statement that the consent is subject to revocation at any time except to the extent that the program or person that is to make the disclosure has already acted, relying on the consent. This includes the provision of treatment services relying on a valid consent to disclose information to a third party payer; and

The date, event, or condition upon which the consent will expire if not revoked before; this date, event, or condition must be set to ensure that the consent will last no longer than reasonably necessary to serve the purpose for which it is given.

A consent document to disclose an ADAP record must meet the above PHS and SSA requirements before we can disclose any information. If any of the required information is illegible, missing, or incomplete, return the consent to the requester with an explanation of why we cannot honor it. Inform the requester of the information we need in order to process a request.

NOTE: If the patient has died, the executor or administrator of the estate, or if there is none, the spouse or closest other relative of the deceased patient may sign the consent. (See 42 CFR 2.15(b)(2))

PHS regulation 42 CFR 2.32 requires us to include the text below in our notice with each consent-based disclosure of an ADAP record.

“This information has been disclosed to you from records protected by Federal confidentiality rules (42 CFR, Part 2). The Federal rules prohibit you from making any further disclosure of this information unless further disclosure is expressly permitted by the written consent of the person to whom it pertains or as otherwise permitted by 42 CFR, Part 2. A general authorization for the release of medical or other information is not sufficient for this purpose. The Federal rules restrict any use of the information to criminally investigate or prosecute any alcohol or drug abuse patient.”